Update on Getty and Masterfile Letter Program

[Oscar Michelen]

A recent post on this forum suggested I update everyone on the status of the Getty Demand Letter Program. So while I try to coordinate a new audio update with Matthew, I thought I would just do a quick post to tell everyone what is going on. The Letter Program is still going strong as thousands of web site owners and developers continue to receive the Getty Demand Letter.  Our site has gotten some attention from the media as both the LA Times and Seattle Times did stories on the Getty program and mentioned this site.

We've learned of no new lawsuits filed by Getty since our last post.  The most interesting thing to have changed is that in the last few months, the demand in the letter has gone down from the traditional $1,000 or $1,300 per image to $750 and in some cases even $450.  I think this is likely in response to some of the efforts done through this site.  I think is terrific and a major change in Getty's position. I am glad that Getty is realizing that there is no basis for the amounts they demand and that they have begun to adjust their demand letters accordingly.  Now if they will negotiate reasonably against that initial demand, we may have some real progress here. Let's see what happens.

Masterfile continues to expand their program.  When it started, they had one individual doing all of their correspondence and negotiation.  Now the program has 3 "Compliance Officers" all of whom continue to send out letters to those allegedly found to have Masterfile images on their sites. Masterfile has increased the demand amounts in their letters from around $2,000 per image to now between $4,000 and $6,000 per image. No explanation was given for the increased amounts.
So, our position with Masterfile has really not changed - it is best to try and reach an amicable settlement with them since they have registered their images and would be entitled in a court of law to attorney's fees and costs, as well as statutory penalties.

[joehawk]

thank you oscar. I have got one of those letters as well and it is for $450 for a thumbnail image that was put on the site by the developer. The problem is the developer is a istockphoto customer, he buys all the images from there. We ourselves as a company have an istockphoto account and regularly buy from istockphoto, this is to show our approach to the issue. Developer does not know where he got the image, he cannot find the source. I checked the image an it is not registered by C office. I emailed getty people and told them we removed the said image to be on the safe side since we are not sure if the developer has a license for it or not. Their reply was the same BS that they sent to everyone, how they dont care if it was put there by the developer etc etc. I have not since replied to them.I asked the developer to do more searching and finding out where he got it from. It may have been from a website that image was available royalty free.  

The thing is the shi**y image should not even cost $10. We buy hi res nice images for that money, this thumbnail low res image is probably worth a dollar or two. Getty is unethical to say the least. I would say more but I am sure it would be censored so I will keep quite. I am not planning to give them more than $5, which is plenty for the image. But on the other hand I dont even want to negotiate with them because in your posts you mention that the value they assess for their images is the main point of difference between you and them.

Joe

[Oscar Michelen]

thanks for the post and keep us posted on how it proceeds

[smsky]

Hi Oscar,

I received both a Getty and Masterfile letter in the same week.  Fortunately, the Getty image was part of a banner in a template I purchased from Template Monster.  Their legal counsel took quick and full responsibility in communicating with Getty and provided me with a replacement image for my site.  They were super in their service.  The template was purchased in 2001.  

With the Masterfile claim, I am negotiating with them directly as I am a professional mediator (non-attorney).  They are demanding $23k for four stock images that a contractor I used to create my website purchased from another company Number 9 Photo Service in 2001.  He provided me with a receipt of the purchase, for $170. which clearly lists the four images in question.  I have tried to contact them, but they have email and voice mail screens that indicate they are attempting to be selective on who they communicate with - most likely because of other similar issues.  They are not responding to my requests for copies of contracts with the artists.

Masterfile appears to have exclusive contracts with the artists in question predating my purchase from Number 9 Photo Service and appears to have registered the images, although I have not clearly established the date of the registration to my satisfaction.  

Clearly, we felt we were purchasing images legitimately and I don't think Masterfile would question that.  I feel fortunate that my contractor had the receipt.  It seems counter-intiutive that I should be held responsible for damages when I/we purchased the images in good faith.  But I realize that these things do not have to make sense.  Masterfile has told me that I could sue Number 9 Photo Service but I would of course prefer they pursue them instead of me.  Should a person purchasing images get a copy of artist contracts and copyright registrations to be sure that the company they are purchasing from actually holds the rights to the images for purchase?  It seems like a steep burden for a buyer of an image that could cost $10 and carry liabilities in the thousands of dollars.

Oscar, can you speak more about the $200. limit per image or image group?  Any suggestions?  I am communicating with them in a cooperative manner, so I hope to keep it non-adversarial to reach a mutually agreeable, cost-effective conclusion.  I am angry about the situation but am treating it as just a business decision to attempt to address it in an intelligent and not an emotional manner - at least thus far

Thanks for your moderation of this forum.

[Oscar Michelen]

The $200 per infringement limitation on damages in cases of innocent infringement is not mandatory; it is discretionary and totally within the judge's purview. Many judges did apply the $200 limitation in lawsuits brought by the recording industry awhile back.  So I would argue that it should apply here, but there is no hard and fast rule about when a judge should  reduce the damages to $200 so the are is very gray unfortunately.  My point is that if it is at all applicable in cases involving digital music it must be applicable here. After all, who doesn't know that music is subject to copyright protection?  Certainly more people are aware of that than copyright protection over thumbnail images without any watermark or copyright notice attached to them. Also certain courts also spoke out strongly against those music lawsuits brought by the RIAA and blasted the recording industry for using the Federal Court system as a collection agency against minor infringement. I think the same argument can be made in this case